Hirschman v. Chatham Cty.
Hirschman v. Chatham Cty.
Opinion
*349 Daniel Hirschman, Jason and Joan Hickey, William Hlavac, Christopher and Amy Gamber, James Miller, and Jeffrey C. Pugh and Janice M. Rivero (petitioners) appeal from the Chatham County Superior Court's order dismissing with prejudice their petition for writ of certiorari. After careful review, we affirm.
*350 I. Background
According to the petition, on 30 April 2014, American Tower, LLC and AT&T Mobility (the applicant) applied to Chatham County (respondent) for a conditional-use permit to erect and operate a monopole telecommunications tower. The Chatham County Board of Commissioners (BOC) held a quasi-judicial hearing on the matter on 16 June 2014, and it forwarded the application to the county planning board for a recommendation. On 5 August 2014, the county planning board recommended that the conditional-use permit be approved. The BOC held a meeting on 15 September 2014 in which it granted the conditional-use permit by adopting a resolution. The BOC's decision was filed with the clerk of the BOC on 6 October 2014.
Petitioners are citizens and residents of Chatham County who live "within plain view" of the proposed tower. On 31 October 2014, petitioners filed a "Petition for Review in the Nature of Certiorari," seeking review of the BOC's decision to grant the applicant a conditional-use permit. Petitioners alleged that they had standing to bring the petition because they were "owners of residences and lots in close proximity to the tower site such that the tower will be plainly visible from [p]etitioners' properties," and they "will sustain a diminution in the fair market values of their properties and an impairment of the residential integrity and character of their community."
On 10 November 2014, the Chatham County Superior Court issued a writ of certiorari. Respondent filed a response to the petition and a motion to dismiss, arguing that the petition was deficient in that petitioners failed to name the applicant as a respondent as required by N.C. Gen. Stat. § 160A-393(e). Thus, respondent claimed that the superior court lacked jurisdiction. Second, respondent argued that petitioners lacked standing because there was no evidence to establish that they would suffer special damages. On 30 April 2015, petitioners filed a "motion for entry of consent order allowing motion to intervene, or, in the alternative, for an order to include the applicant and other parties designated in the consent order [to] be added as respondents."
After a hearing on respondent's motion, the trial court entered an order concluding that it lacked subject matter jurisdiction over the cause "because the appeal was not properly perfected in accordance with
II. Analysis
"The appellate court reviews
de novo
an order of the trial court allowing a motion to dismiss for lack of subject matter jurisdiction[.]"
Cooke v. Faulkner
,
Petitioners argue that their failure to name the applicant as a respondent in the petition did not deprive the trial court of subject matter jurisdiction, relying exclusively
*213
on our holding in
MYC Klepper/Brandon Knolls L.L.C. v. Board of Adjustment for City of Asheville
,
When deciding special use permits or conditional use permits, the board of county commissioners or planning board shall follow quasi-judicial procedures.... Every such decision of the board of county commissioners or planning board shall be subject to review of the superior court in the nature of certiorari consistent with G.S. 160A-388.
N.C. Gen. Stat. § 153A-340(c1) (2015). Section 160A-388(e2)(2) provides: "Every quasi-judicial decision shall be subject to review by the superior court by proceedings in the nature of certiorari pursuant to G.S. 160A-393." N.C. Gen. Stat. § 160A-388(e2)(2) (2015). Furthermore, "[a] petition for review shall be filed with the clerk of superior court by the later of 30 days after the decision is effective or after a written copy thereof is given in accordance with subdivision (1) of this subsection."
N.C. Gen. Stat. § 160A-393, entitled "Appeals in the nature of certiorari," applies to "appeals of quasi-judicial decisions of decision-making *352 boards when that appeal is to superior court and in the nature of certiorari as required by this Article." N.C. Gen. Stat. § 160A-393(a) (2015) ; see also 2009 N.C. Sess. Law 2009-421 ("An act to clarify the law regarding appeals of quasi-judicial decisions made under Article 19 of Chapter 160A and Article 18 of Chapter 153A of the General Statutes."). "An appeal in the nature of certiorari shall be initiated by filing with the superior court a petition for writ of certiorari." N.C. Gen. Stat. § 160A-393(c). Relevant here, subsection (e), entitled "Respondent" provides:
The respondent named in the petition shall be the city whose decision-making board made the decision that is being appealed, except that if the petitioner is a city that has filed a petition pursuant to subdivision (4) of subsection (d) of this section, then the respondent shall be the decision-making board. If the petitioner is not the applicant before the decision-making board whose decision is being appealed, the petitioner shall also name that applicant as a respondent ....
N.C. Gen. Stat. § 160A-393(e) (emphasis added). "Our appellate courts have consistently held that the use of the word 'shall' in a statute indicates what actions are required or mandatory."
Morningstar Marinas/Eaton Ferry, LLC v. Warren Cnty.
,
Here, respondent directs our attention to two unpublished opinions that have addressed this precise issue. In
Whitson v. Camden County Board of Commissioners
, COA12-1282,
*214
In
Philadelphus Presbyterian Foundation, Inc. v. Robeson County Board of Adjustment
, COA13-777,
On appeal, this Court acknowledged that Whitson was not binding, but we concluded that
it is consistent with and compelled by our decision in McCrann v. Village of Pinehurst ,216 N.C.App. 291 ,716 S.E.2d 667 (2011), in which the petitioner's challenge to the issuance of a conditional use permit was not filed within the thirty day period specified in N.C. Gen. Stat. § 160A-388(e2) and in which we held that this deficiency, like the failure to note an appeal in a timely manner, deprived the reviewing court of any jurisdiction to hear and determine the issues raised in the petition....
Although the filing of a certiorari petition certainly bears some resemblance to the institution of a civil action, as Petitioners implicitly assert, the analogy between an appeal and a request for certiorari review made in McCrann is clearly the correct one. In such certiorari proceedings, the "superior court is not a trier of fact, but assumes the posture of an appellate court." In re Appeal of Willis ,129 N.C.App. 499 , 500,500 S.E.2d 723 , 725 (1998).... For that reason, we conclude that the extent to which a trial court obtains jurisdiction to address the issues raised in a certiorari petition should be analyzed in the same manner as the extent to which an appellate court obtains jurisdiction over an appeal from the General Court of Justice or an administrative agency.
Philadelphus Presbyterian Found., Inc.
,
The
Philadelphus
Court also addressed the petitioners' argument that, based on our decision in
Mize v. Mecklenburg County
,
*354
Philadelphus Presbyterian Found., Inc.
,
The language of [N.C. Gen. Stat. § ] 153A-345 requires only that any petition seeking review by the superior court be filed with the clerk of superior court within 30 days after the decision of the Board is filed or after a written copy has been delivered to every aggrieved party. The petitioners complied with all the express requirements of this vague statute by filing a petition in Mecklenburg County Superior Court within 30 days of the decision of the Board.
Philadelphus Presbyterian Found., Inc.
,
The
Philadelphus
Court stated that "although the
Mize
petitioners failed to join a necessary party, they did comply with all of the statutorily prescribed prerequisites for the filing of a valid
certiorari
petition."
Nonetheless, here petitioners argue that our holding in
MYC Klepper
,
The facts of
MYC Klepper
are distinguishable from the current facts. In that case, the issue involved a notice of violation, not the granting of a conditional-use permit, and the petitioner was the billboard sign owner, not an interested neighbor.
Id.
at 433-35,
We note that in
Darnell v. Town of Franklin
,
*356
While
Whitson
and
Philadelphus Presbyterian Foundation, Inc.
are unpublished and, therefore, not binding,
2
we find their analyses persuasive and directly applicable here.
See
Henderson v. Cnty. of Onslow
, --- N.C.App. ----, ----,
*216 A petition for certiorari is not an action for civil redress or relief as is a suit for damages or divorce; a petition for certiorari is simply a request for the court addressed to judicially review a particular decision of some inferior tribunal or government body.... [A] petition for certiorari is not the beginning of an action for relief....; in effect it is an appeal from a decision made by another body or tribunal. Certiorari was devised by the early common law courts as a substitute for appeal and it has been so employed in our jurisprudence since the earliest times.
Henderson
, --- N.C.App. at ----,
According to well-established law, "an appeal is not a matter of absolute right, but the appellant must comply with the statutes and rules of Court as to the time and manner of taking and perfecting his appeal."
Caudle v. Morris
,
Here, petitioners were not the applicant before the decision-making board whose decision was appealed. Therefore, under N.C. Gen. Stat. § 160A-393(e), petitioners were required to name the applicant as a respondent, which they failed to do. As this Court has previously stated, "[t]he real adverse party in interest is the party in whose favor the Zoning Board's decision has been made."
Mize
,
III. Conclusion
The trial court did not err in dismissing the petition. We affirm.
AFFIRMED.
Judges ZACHARY and ENOCHS concur.
N.C. R. App. P. 10(c) (2016) provides:
Without taking an appeal, an appellee may list proposed issues on appeal in the record on appeal based on any action or omission of the trial court that was properly preserved for appellate review and that deprived the appellee of an alternative basis in law for supporting the judgment, order, or other determination from which appeal has been taken.
N.C. R. App. P. 30(e)(3) (2016) ("An unpublished decision of the North Carolina Court of Appeals does not constitute controlling legal authority.").
Case-law data current through December 31, 2025. Source: CourtListener bulk data.